Posted by: danielfee | March 24, 2013

Civil War 2.0: Round Four – The Segregationists

Round Four – The Segregationists

After losing the Civil War and then being brought back into the Union, the states of the old Confederacy still would not accept the supremacy of federal law over their state. They continued to adhere to the theory that states rights superseded federal law whenever they disagreed with a specific law. The Thirteenth Amendment, which prohibited slavery and involuntary servitude, was ratified on December 6, 1865. Although ratification of this amendment by the southern states was a condition before they were re-admitted to the union, President Andrew Johnson did not require that the states permit blacks to vote. So in 1866 southern whites took back control of local governments and began to pass Black Codes which institutionalized segregation and denied civil rights to blacks. The former slaves were now technically free, however they were denied rights of citizenship, such as serving on juries, appearing as witnesses or having their right to vote guaranteed. Unemployed blacks were often arrested and fined. They were then sold off to employers to pay their fines. So after four years of war, which resulted in the loss of approximately 625,000 American lives and the abolishment of slavery, the Confederate states essentially reestablished it through the adoption of Black Codes.

In 1866 the Congress passed the 14th Amendment, which was finally ratified on July 9, 1868 to make it clear that all persons were entitled to equal protection under the laws and that no state could “abridge the privileges or immunities of citizens.” In 1867 Congress passed the Reconstruction Acts. A key feature of the Acts included the creation of five military districts in the South, each commanded by a Union general who would serve as the acting government for the region. In addition, Congress required that each state draft a new state constitution, which would have to be approved by Congress. The states were also required to ratify the 14th Amendment and grant voting rights to black men. President Johnson vetoed these measures but was overridden by Congress. During the brief period of Reconstruction, black men had the full rights of citizenship and became landowners, politicians and community leaders. However the Ku Klux Klan (KKK), which was founded in 1865-66, began to murder and intimidate blacks to prevent them from voting and participating in public life. They were successful and by 1877 the southern white Democrats had regained control of state and local governments. The intensely disputed presidential election of 1876 between Rutherford B. Hayes (R) and Samual J. Tilden (D) was ultimately resolved by the Compromise of 1877, which effectively abandoned southern blacks by removing all Federal troops in the south allowing the southern white Democrats to assume full control with what were referred to as “redeemer governments.” In exchange, the southern states accepted Republican Hayes as the winner of the presidential election.

Gradually, the south reinstated racially discriminatory laws. The main goals of these laws were intended to achieve disenfranchisement and segregation. In order to take away the rights that blacks had obtained as a result of the Civil War and during the Reconstruction period, the “redeemer governments” began to stop blacks from voting even though this right was guaranteed by the 15th Amendment. This was accomplished by new laws that imposed poll taxes and literacy tests. Combined with the intimidation of the KKK, the number of blacks voting in the south dropped to virtually nothing. Segregation was implemented by a series of laws that directly challenged the 14th Amendment, which became know as “Jim Crow” laws. The U.S. Supreme Court provided the “redeemer governments” with a big assist when they invalidated the Civil Rights Act of 1875, which was the last piece of Reconstruction legislation that Congress had passed. The act stated that all men were equal before the law and promised equal justice to every person of every “race, color or persuasion.” It also sought to prohibit racial segregation of trains, trolleys, theaters, hotels, restaurants and other places open to the public. The Supreme Court struck down the Civil Rights Act of 1875 finding that the 14th Amendment only applied to state-sponsored discrimination. They said it did not apply to privately owned places of public accommodation, which meant that private businesses were free to impose discrimination and racial segregation.

This is the exact same argument that Tea Party favorite Rand Paul was making in a series of interviews he did in May 2010 before he was elected Senator from Kentucky. He said he opposed discrimination but has problems with the Civil Rights Act of 1964 because it bans businesses from discriminating against customers. He repeated his belief in a “limited government” which should not have the authority to force private businesses to abide by civil rights law in a follow-up interview. He went on to say “Let me be clear: I support the Civil Rights Act because I overwhelmingly agree with the intent of the legislation, which was to stop discrimination in the public sphere and halt the abhorrent practice of segregation and Jim Crow laws.” But Senator Paul made it perfectly clear that private discrimination and segregation was fine with him.

This is exactly the same position that the Supreme Court took in the 1883 Civil Rights Cases, then later reinforced and expanded with the 1896 Plessy v. Ferguson decision which upheld the constitutionality of state laws requiring racial segregation of public facilities under the doctrine of “separate but equal.” So private discrimination had expanded into public discrimination by 1896. This was the beginning of legalized segregation which lasted fifty-eight years until 1954 when the Supreme Court handed down its Brown v. Topeka Board of Education ruling to finally outlaw state-sponsored segregation.

Once again the old confederate states resisted federal authority using the same old “states’ rights” arguments against forced integration. One of the leaders was George Wallace, who was elected governor of Alabama in a landslide victory November 1962. He took his oath of office standing on the gold star marking the spot where nearly 102 years earlier Jefferson Davis was sworn in as provisional president of the Confederate States of America. In his inaugural speech, Wallace used the pro-segregation line for which he is best known, “In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever.”

As the Civil Rights movement picked up momentum, resistance in the south became more violent resulting in numerous deaths. However, it was apparent that the state and local governments had little interest in investigating or prosecuting these crimes. Therefore it became clear that additional federal intervention would be required. Of course the same old cries of a tyrannical federal government were heard from the old confederacy. It took an additional ten years before Congress passed the Civil Rights Act of 1964, followed by the Voting Rights Act of 1965 which provided for federal enforcement so that blacks in the south were finally able to exercise their full constitutional rights.

While most people look back at the “Jim Crow” era as a disgraceful period in American history that did not live up to the ideal that all men are created equal, the Tea Party and elected officials like Senator Rand Paul seem to see it as a golden era of constitutionally limited government and free market utopia. It is a little difficult to accept the Tea Party’s claims that they are not racially motivated when they are using the same anti-federalist, nullification, confederate and segregationist arguments that have been used throughout the entire history of this continuing argument which has always had slavery, racial discrimination, or segregation at its core. I will discuss this in more detail in the next post; Round Five – The Tea Party.

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